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Conservative Judaism and
Homosexuality:
Understanding the New Debate
By
Joshua Yuter
July 2008
A paper submitted in partial fulfillment of the requirements
for the Master of Arts degree in the
Master of Arts Program in the Social Sciences
Conservative Judaism and Homosexuality: Understanding the New Debate
Abstract: In 2006 Conservative Judaism reignited an internal debate when it reopened
the question of normalizing homosexuality in Judaism. This paper analyzes the
arguments of R. Joel Roth and R. Elliot Dorff, representing the two main sides in the
debate. We find that both Roth and Dorff selectively cite Jewish law to reach their
desired conclusions. We also argue that the Conservative Judaism's debate on
homosexuality represents an evolution of the tradition vs. modernity struggle and
between a collectivist vs. individual dichotomy of Jewish identity.
1. Introduction
In December 2006, Conservative Judaism revisited the question of its established
policies regarding how gays and lesbians are to be integrated in their communities.
After considerable deliberation, the Committee of Jewish Laws and Standards (CJLS) –
Conservative Judaism's religious policymaking body – published three position papers
or teshuvot (sing: teshuva) advocating three different approaches to the question of
homosexuality in Judaism. One paper, written by R. Joel Roth, upheld and defended the
consensus statement formulated by the CJLS in 1992 which prohibited all homosexual
activity, which considered all sexual behavior between homosexuals as violations of
Jewish law. A second responsum written by R. Leonard Levy parenthetically upheld the
earlier decision in an appendix, but primarily focused on the pastoral approaches to
counseling and "treating" homosexuals. The third and most controversial teshuva
written by R. Eliot Dorff, R. Daniel Nevins, and R. Avram Reisner, presented an
innovative reading of Jewish law to permit certain homosexual activity outright, and in
doing so reversed the 1992 precedent which previously denied the admission of
homosexuals to the rabbinical and cantorial schools.
This third teshuva received the most coverage in the mainstream media. The
New York Times headline read "Conservative Jews Allow Gay Rabbis and Unions"
(Goodstein 2006) and the Washington Post similarly declared, "Conservative Rabbis
Allow Ordained Gays, Same-Sex Unions" (Cooperman 2007). That this decision would
warrant such coverage is not surprising. Although Conservative Judaism recently ceded
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Conservative Judaism and Homosexuality: Understanding the New Debate
its status of largest Jewish denomination to Reform Judaism, it is still a strong second
with approximately 1.3 million affiliated households (Ament 2005).
Perhaps more significant is the ideological impact of Conservative Judaism
issuing such a decision. For most of its history, Conservative Judaism has defined itself
as being committed to Jewish law yet open to modifying Jewish practice as needed
(Gordis 1988). For example, Conservative Judaism permits driving to synagogue on
Shabbat (Adler, Agus et al. 1958), mixed seating in the synagogue (Aronson 1956), and
ordaining women rabbis (Roth 2005), all positions for which Conservative Judaism has
been criticized by traditionalists or self described Orthodox Jews. But even Conservative
Judaism's most controversial decisions are not simply approved out of convenience or
pressures of populism, but require the justification of each position through traditional
sources and reasoning. Consequently, while the teshuva may promote a social policy
change, its religious implications are far more significant. The CJLS is the authoritative
body of a traditionally-minded religious organization and for the CJLS to produce a
religious dispensation for homosexuality signifies a potential shift in Jewish legal
hermeneutic.
For obvious reasons, the mainstream media did not delve into the nuances of
Jewish law, nor did they explore the significance of the dispute from the perspective of
Conservative Judaism itself. In fact, later studies have shown that the movement is still
very much divided. Describing the aftermath of the decision Jack Wertheimer, professor
of history at Conservative Judaism's Jewish Theological Seminary, writes:
Movement officials lauded the committee's work, characterizing its
acceptance of diametrically opposite rulings as proof positive of
Conservativism's successful commitment to religious pluralism. But to
judge from a follow-up opinion poll, rabbis and presidents of
Conservative synagogues felt otherwise. Far from welcoming the exercise
as a success, two-thirds of the former claimed to have been "somewhat
embarrassed" by the contradictory rulings, and over half of the lay leaders
pronounced themselves "confused" (Wertheimer 2007:38).
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Conservative Judaism and Homosexuality: Understanding the New Debate
Part of the confusion is procedural in that the structure and methods of the CJLS
allows for – if not encourages – the issuance of multiple opinions. According to the
procedures of the CJLS, position papers on a given topic are solicited, reviewed, and
voted upon by the CJLS:
However, since a paper is usually approved when achieving six or more
votes in its favor, there are times when the CJLS passes multiple papers
on the same question. Sometimes, the papers are complementary,
offering different approaches to a similar conclusion, with minor
differences. Other times the CJLS passes papers that openly conflict in
their conclusions. When six or more members of the CJLS vote for a
particular paper, the paper is considered to represent a significant
consensus and is therefore an official position of the Rabbinical
Assembly. Since the CJLS‘s function is to advise Conservative rabbis on
matters of Jewish law, there are times when it offers multiple options of
interpretation (Fine 2006:2). [Emphasis added]
Given these criteria, it should not be unexpected were the CJLS to affirm and
approve mutually contradictory teshuvot. For example, in 1994 the CJLS debated
allowing female kohanim – members of the Jewish priestly class – to join the male
kohanim in performing the communal priestly benediction. The teshuva permitting
women joining the men passed with twelve votes (Rabinowitz 2002), while the
restricting teshuva, despite eleven votes opposed, still passed with nine votes in favor
(Bramnick and Kogen 2002). Furthermore, members of the CJLS may vote for two
opposing papers. In 1995 the CJLS considered solutions for how a Jewish owned
business could function on Shabbat, and approved two mechanisms for transferring
ownership to a non-Jew: one by way of a temporary lease (Roth and Krivosha 2002) and
one though a form of incorporation (Bergman 2002). While there are significant
halakhic differences between the two solutions, seven members of the CJLS voted in
favor of both proposals. In such instances, voters may view two sides as equally
legitimate options and find both worthy of approval.
However for the laity of Conservative Judaism such procedural nuances are
typically irrelevant. Most decisions are for specific instances of Jewish law and may not
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Conservative Judaism and Homosexuality: Understanding the New Debate
be applicable to the population at large. Furthermore, it is unlikely that the Conservative
Jewish laity would be expected to read the responsa let alone understand the halakhic
arguments, but would instead rely on their communal rabbi for instruction. The rabbi's
role as a local decisor must be predicated on a sense of stable decisiveness.
Consequently, when such rabbinic divisions are publicized throughout the movement,
the pedagogic relationship between the rabbinate and congregant becomes muddled,
especially considering that one rabbi – R. Adam Kligfield – voted for two mutually
exclusive responsa on homosexuality on the grounds that both were theoretically valid
arguments (Ain 2006).
But this confusion is not limited to the practical conclusion, or even over the
specific arguments of the teshuvot. At stake are two models for the present and future of
Conservative Judaism disguised as halakhic arguments, with one side representing the
original collectivist vision of Conservative Judaism and the other defending a
modernized individualistic approach to Jewish identity. This thesis will explore the
contradictory positions of Roth and Dorff, and evaluate their arguments in the context of
their own respective legal traditions. Based on our findings, we will demonstrate that
both Roth and Dorff approach the question of homosexuality with an a priori intent for a
desired conclusion and mask their respective agendas in the selective use of traditional
sources. Based on our analysis we will then explore the significance of this debate and its
ramifications for Conservative Judaism.
2. The 1992 Debate
The current debate on homosexuality began with the 1992 consensus statement,
originally composed by R. Eliot Dorff (Dorff 2002:692) and accompanied by eight
teshuvot and consensus statements (papers not submitted for voting) including teshuvot
written by R. Dorff as well as R. Joel Roth. The 1992 statement, issued five resolutions:
1. Conservative Judaism will not officiate any gay and lesbian commitment ceremonies 2.
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Conservative Judaism and Homosexuality: Understanding the New Debate
Conservative Judaism "will not knowingly admit avoid homosexuals" to rabbinical or
cantorial schools, but neither would they "instigate witch hunts" among the student body
3. Individual Rabbis will determine the hiring of homosexuals as teachers or youth
leaders for their own communities 4. Individual Rabbis will form their own policies
regarding homosexuals receiving religious honors or holding leadership positions 5. The
CJLS affirmed that homosexuals are welcome in the Conservative community, including
synagogues, camps and schools. This statement passed with a vote of nineteen in favor,
three opposed and one abstention (19-3-1), but Dorff's own teshuva, primarily calling for
further discussion, passed by a less impressive margin of 8-8-7. Of the formal teshuvot
presented in 1992, Roth's was significantly more influential with the greatest number of
votes in favor and fewest opposed, passing 14-7-3 (Roth 2002).
Roth's 1992 teshuva provides an in depth analysis of Biblical and Rabbinic legal
and homiletical statements regarding homosexuality. He concludes that based on the
traditional sources of Judaism that "both male and female homosexuality are forbidden"
for both active and passive partners. Furthermore, while the Biblical designation of
homosexuality being an "abomination" is not an inherent condemnation of a homosexual
identity it does apply to the "disruption of the heterosexual family ideal" and "the nonprocreative and unnatural aspects" of homosexuality. For Roth, there is no halakhic
mitigation of the prohibitions or ethical justification for supportive and permanent
homosexual relationships. And while Roth does explore the etiology of homosexuality,
he does not consider it to be a significant factor to influence Jewish law (Roth 2002:662663).
The "pesak" or practical conclusion of Roth's teshuva is that barring a
heterosexual marriage, homosexuals have no halakhic mechanism for acting on their
sexual urges. Dorff finds this conclusion to be "cruel" and inconsistent with the mission
of Conservative Judaism of adjusting Jewish law in response to contemporary needs.
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Conservative Judaism and Homosexuality: Understanding the New Debate
Dorff argues that while heterosexual marriage may be the Jewish ideal, Conservative
Judaism:
...must recognize that not everyone will abide by that ideal. This however
should not mean that Judaism then has nothing to say about sexual
norms to those who are not achieving the ideal in this area; it should not
be "all or nothing" (Dorff 2002:709). [Emphasis original].
Since homosexuality is not a choice, gays and lesbians will find it difficult if not
impossible to live in accordance with the ideal Jewish law. For Conservative Judaism to
be relevant and receptive to Conservative homosexuals, it must then find a way for
homosexuals to live within Conservative Judaism as they are. Dorff however does not
suggest any solutions, but does advocate "reconsideration" of the issue at some later
point.
Anticipating future debates on the matter, both Roth and Dorff include in their
1992 teshuvot criticism of the other's methodological approach to the question of
homosexuality. Specifically, Roth's approach is that of an objective adjudicator, which
means not only legitimizing controversial questions with a response, but also
approaching each question from an unbiased perspective. In particular Roth defends his
systematic methodology against advocates, who have demanded a conclusion more
favorable to homosexuals:
I have been contacted by some homosexuals whose claim is equally
definitive. "Halakha has no option but to validate homosexuality as a
lifestyle co-equal with heterosexuality. If it does not do so, it has lost any
and all influence on the lives of Jewish homosexuals, it has excised the
Jewish homosexual from the community, and it has reinforced the
homophobia of the American society at large (Roth 2002:613).
Roth responds to this charge by noting that not only does Conservative Judaism include
strong opinions on the other side of the debate, but that personal feelings are irrelevant
to the facts of Jewish law:
Halakhists are the guardian of a legal system they hold very dear. They
ought not to be expected to violate their commitment to that legal system
because members of their constituency are unhappy with their decisions.
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Halakhists can be sensitive, understanding, and caring – and still disagree
with the claim of the constituent. It is easy to contend that the halakhist
did not really understand because if he had, he could never had have
decided as he did. The ease of the contention does not necessarily make it
true.
It is possible to reject the claim of a constituent without expelling the
constituent from the halakhists' constituency. There are many issues
concerning which certain constituents have very strong feelings. They,
too, expect the halakhists to listen carefully and attentively, and to decide
the issue as they believe halakha demands. When the decision is
consonant with the claim of the questioner, the questioner is clearly
pleased. But when the decision is not as the question might have wished,
the questioner ought not to feel himself chastised by the answer. The
questioner ought not to feel that he has been expelled from the
community or excised from the constituency (Roth 2002:614)
After presenting his arguments for prohibition, Roth dedicates a section directed to the
homosexual community. He explains that he avoids the terms "gay" and "straight" due
to possible negative implications, but prefers them "homosexuality" because it is more
"dispassionate". Furthermore, he acknowledges the extreme demands of his halakhic
view in requiring homosexuals to live a permanently celibate lifestyle. At best Roth calls
for tolerance of those homosexuals who "backslide" in their observance (within the
aforementioned limitations) just as other Conservative Jews accept those who transgress
other laws. Roth also acknowledges that denying homosexual marriages within Judaism
does not exclude supporting homosexual marriage in the civil arena (670-672). This is
the extent Roth can accommodate within his parameters of Jewish law, parameters
which are ultimately sacrosanct:
Castigating the halakhic community and its decisors as insensitive and
unfeeling because they have given a negative answer is unwarranted.
When a decisor has investigated all possible avenues to permit an aguna
to be remarried and has concluded that it cannot be done without
sacrificing the ideals and values which the norms embody, he reaches his
conclusion with a heavy heart and tearful eyes. That heavy heartedness
and tearfulness are caused precisely because the decisor knows and feels
the pain and anguish his decision will inevitable cause. There is no glee in
the mind of the decisor when reaches a decision that imposes any
hardship of any kind on an individual. Nonetheless, the values and ideals
of the law – the community's best understanding of God's will –
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sometimes make the imposition of such a hardship unavoidable.
V'hamevin yavin (Roth 2002:671-672).
Roth's concluding phrase "v'hamevin yavin" literally means "the discerning will
understand," and its use indicates to the reader that there is an important subtext to the
passage. Roth is arguing that despite an authority's a priori emotional desire to reach a
particular conclusion, the authority must follow the established legal methodology of the
halakhic process, and is thus limited in the degree of innovation. In the process of his
argument Roth references the aguna – a woman who is "chained" to her husband due to
reluctance or inability to divorce his wife (e.g. if he is missing or not of sound mind).
Since an aguna is prohibited to remarry, even Talmudic rabbis found creative solutions
to resolve the problem including retroactively annulling the marriage through various
halakhic mechanisms. However, applying such solutions in modern times has proved to
be a contentious issues within Judaism due to questions of legitimate religious
authorities and enforcement of such measures (Riskin 2003; Hacohen 2004).
Roth's reference of the aguna problem also recalls Conservative Judaism's
tradition of halakhic innovations to contemporary problems. Conservative Judaism first
addressed the aguna issue in the aftermath of World War I which left the wives of
missing in action soldiers uncertain as to their ability to remarry. R. Louis Epstein
proposed adding a clause in the ketubah – the Jewish marriage document – in which the
husband would designate a Jewish court as his agent to give his wife a get, the Jewish bill
of divorce on his behalf. Since the Jewish court would presumably be an established
stable entity, its presence and accessibility would be more assured than a possible
recalcitrant or missing husband. However, Epstein also admitted that he was unable to
obtain support from other religious leaders, particularly in Israel (Epstein 1932).
The issue was revisited in 1952-1953 with the introduction of "the Lieberman
clause." Attributed to R. Saul Lieberman, Conservative Judaism's leading authority at
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the time, this clause was inserted into the ketubah in which the husband designates a
Jewish court to give the get on his behalf, the Lieberman clause empowered either
spouse to seek civil remedies to enforce the decisions of the Jewish court if they
determined a get was required (Harlow 1965). This solution attempted to balance the
halakhic requirements for divorce, while also providing women with some protection.
However, by 1967 only 65% of Conservative Rabbis were using the Lieberman clause in
their marriage documents. Progressive rabbis felt the provision did not address the
innate inequality of women, while traditional rabbis contended that the clause "was a
break with the Orthodox standard" (Schwartz 1995:200). (Though ironically, the
Orthodox Rabbinical Council of America later adopted a prenuptial agreement with
essentially the same demands as the Lieberman clause).
The similarities between the aguna debate and the concern over homosexuals are
striking. Conceptually, both address a similar problem of permitting forbidden sexual
relations; married women are forbidden from sexual relations with other men under
penalty of death for both partners (Lev. 20:10) as are homosexuals (Lev. 20:13). As with
homosexuals, a married heterosexual woman has no halakhic possibility of a healthy
sexual relationship if she is trapped as an aguna. If the principles and ethical
motivations behind allowing a woman to remarry is sufficient reason to modify Jewish
practice, then by extension, a similar argument could be made to allow homosexuals to
engage in their own sexual activity.
From a religious perspective, traditionalists clashed with progressives over if
changes could be made or if changes must be made for both the questions of homosexual
and agunot. This latter argument was succinctly phrased by Orthodox feminist Blu
Greenberg, who once proclaimed "where there's a rabbinic will, there's a halakhic way"
(Greenberg 1981:44) and consequently demands active creativity in solving the aguna
problem (Greenberg 1995).
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Conservative Judaism's adopted solutions satisfied neither side fully, even
though great efforts were expended to construct a change from the accepted practice that
was consistent with the halakhic system. Roth's appeal to the aguna debate within
Conservative Judaism evokes this tradition exemplified by their revered leader R. Saul
Lieberman, who when facing a clear social need to protect women did not compromise
the integrity of halakha. For Roth, the aguna case is the exemplary model of
Conservative Judaism's approach to Jewish law – to compromise, but only within the
fixed parameters of Jewish law.
It is on this point which Dorff is particularly critical of Roth, in that Dorff
perceives an excessive use of legal formalism. In his book on the halakhic process, Roth
writes that:
…extralegal sources constitute only one among many kinds of information
available for a subject to the arbiter's evaluation: It is he alone who
determines the law. For example, ichthyologists may offer data
concerning the nature of the fins and scales of swordfish, but the posek
alone can determine whether or not they fulfill the requirements [of
having fins and scales] required by Leviticus 11:9…Moreover, since
extralegal sources, although admissible, are not determinative, it follows
that two arbiters can disagree concerning the actual significance of
specific extralegal data. But it must be stressed, what they would not be
in disagreement about is the potential significance (i.e., the admissibility)
of extralegal sources in general (Roth 1986:232) [emphasis added]
Dorff objects on the grounds that this approach to Jewish law is far too restrictive and
limits the ability for adapting Jewish law to newer contemporary challenges:
[Roth's] formalism is not of the extreme sort, for he does acknowledge
"extra-legal" factors as potential sources for influencing decisions.
Nevertheless, his view is formalistic in that the legal process is seen as
logical deduction from previous texts of the law. Even in his modified
brand of formalism, a very heavy burden of proof must be borne in order
to invoke any non-textual factor to alter what the decisor takes to be the
meaning of the texts because authority ultimately rests in them (Dorff
2002:693).
Regarding homosexuality, the mitigating "extra-legal" factor for Dorff is the professional
psychological opinion that homosexuality is not a matter of choice:
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The simple fact is that all of the organizations of our time that embody
relevant expertise on these issues have officially said that homosexuality
is not a sickness and that, in any case, it is not reversible. Of course there
are individual psychologists who hold some other view, but to cite
them…is to choose what are by now isolated opinions in the world of
psychology to buttress their weak scientific case…Like it or not, the clear
evidence of the psychological community…is that homosexuality is not an
illness and that it is not reversible (Dorff 2002:696-697).
Dorff contends that since homosexuality is not a choice but a state of being, Jewish law
cannot equate homosexuality with other transgressions. In the 1992 teshuva Dorff
questions if Conservative Judaism is even "ready" to formulate any conclusion (Dorff
2002:794). But despite his dissatisfaction with Roth's teshuva, Dorff does not offer a
rebuttal of Roth's core arguments nor does he offer any alternatives at this point other
than the call to revisit the question. It is clear that despite the CJLS consensus, there was
still unease at the decision. Even one year later a prominent Conservative rabbi wrote:
Predictably, proponents of both of the extreme positions were dissatisfied
with this [Roth's] conclusion, but it probably reflects the sentiments of the
majority of the Movement as a whole...It would also not be surprising if
the issue were to find its way onto the agenda of the Law Committee once
again – before too long (Gillman 1993:10).
In this case "before too long" translated to fourteen years.
3. The 2006 Teshuvot
In 1992 the CJLS largely sided with the arguments and approach of Roth.
However, by 2004 the perspective of the CJLS changed along with some members. Both
Roth's and Dorff's teshuvot received thirteen votes in favor, but while Roth's received
eight votes opposed and four abstentions (13-8-4), Dorff's appears to have been more
polarizing, with twelve votes opposed and no abstentions (13-12-0). This shift in attitude
could be explained in part by turnover on the CJLS; compared with the 1992 CJLS
members, there were eighteen new or substitute voters in 2006. That so many of the
newer members would now be in favor of Dorff's teshuva could itself be an indicator of
changing values within Conservative Judaism.
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Then there are voters were on both the 1992 and 2006 committees, but changed
their positions. R. Aaron Mackler voted for Roth in 1992, but in 2006 he abstained from
Roth and voted for Dorff. R. Kassel Abelson abstained from Roth in 1992, though he did
write own concurring opinion to Roth (Abelson 2002b), and in 1993 upheld the ban on
homosexuals in rabbinical schools (Abelson 2002a). But despite his previous theoretical
support for Roth, he once again abstained in 2006, and voted in favor of Dorff. In the
opposite direction, R. Mayer Rabinowitz abstained from Roth in 1992, but voted for Roth
in 2006 and against Dorff. As noted earlier, R. Adam Kligfield demonstrated that voting
for one teshuva does not preclude voting for a contradictory one.
Roth himself recognizes the attitudinal change in Conservative Judaism, and
addresses this point in the beginning of his 2006 teshuva:
It is my opinion that neither the halakha, nor the science, nor the morality
have changed in the intervening years. What has changed, of course, is
the degree of public ferment, which has increased dramatically (Roth
2006:1).
Roth continues saying that his new teshuva does not detract from anything he wrote in
1992, but rather responds to subsequent "ideas and critiques" with the intent "to
demonstrate that they [those critiques] are insufficiently persuasive enough to convince
us to change our Consensus Statement of 1992" (Roth 2006:1).
Dorff, however, disagrees with Roth's statement on the grounds that Jewish law
must conform to those who wish to live a Jewish life. In other words, homosexuals who
want to be a part of Jewish tradition must have some viable recourse:
This responsum works within the limits of traditional halakhic discourse.
To do otherwise would compromise the integrity of the halakhah and
would accomplish nothing for those gay and lesbian people who strive to
live as observant Jews. People who are not Torah observant have no
particular need for a traditional halakhic responsum. But people who are
observant and are also gay or lesbian are caught in a terrible dilemma,
with no halakhic guidance about the integration of their Jewish identity
and their sexual orientation. Our core conviction is that dignity for gay
and lesbian Jews – as for heterosexual Jews – results neither from
blanket permission nor from blanket prohibition of all sexual activity, but
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rather from situating it within the matrix of issur v'heter, permission and
prohibition, which permeates all of life (Dorff, Nevins et al 2006:102)
(Henceforth Dorff 2006)
As with Roth in 1992, Dorff also invokes the plight of the aguna, but does so as a model
of how Conservative Judaism adjusts and innovates Jewish law in modern times and
survives despite the criticisms of traditionalists that any change would "be the undoing
of halakhah" (Dorff 2006:2). Furthermore, Dorff stresses Conservative Judaism's
commitment to modifying Jewish law when there is an ethical necessity or to allow
people to live as religious Jews. For Dorff, Jewish law is not merely a legal system only
demanding unquestioned obedience. Rather it is the obligation of the religious
authorities to provide feasible options for otherwise committed Jews:
Dor dor v‘doroshav—each generation demands its own interpretations of
Jewish law. As the Torah says, ―When a matter shall arise that confounds
you…you shall go and inquire of the judge who shall be in that day, and
they will tell you the law.‖ (Deut. 17:9) For the CJLS to avoid this issue or
to declare that nothing can be done for homosexuals who wish to observe
the halakhah would be to abandon the Torah‘s mandate. Indeed, were we
unable to find compelling guidance in the halakhah for the sexual lives of
our contemporary Jews, including those who are gay and lesbian, that
would be a terrible defeat for our religious mission (ibid 2).
Dorff begins this paragraph by referencing the Talmud B. Sanhedrin 34b which provides
for rabbis of each generation to legislate according to its immediate needs. In context,
the passage refers exclusively to the Sanhedrin, the great court based in Israel and
recognized as the universally authoritative rabbinic body for the entire Jewish people.
Through this reference, Dorff implies that the CJLS functions similarly if not identically
to the supreme rabbinic institution – at least for its own constituency – and as such
would need to accept the burdens of such authority as well.
Dorff notes that the Talmud itself demands that Jewish laws must be able to be
performed (B. Hullin 11b-12a), and cites R. Eliezer Berkowits, a modern orthodox
theologian for support:
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In the application of the principle of the possible, the impossible is not the
objectively impossible, but that which is not reasonably feasible. The
category of the efshar, the possible, represents what in view of human
nature and with proper attention to human needs is practically or morally
feasible (Berkowitz 1983:12).
Thus for Dorff, for rabbis to find a "feasible" solution for its constituency is a religious
and ethical imperative. Rabbis cannot look at the text neutrally, but rather they must be
active and creative participants in finding plausible halakhic solutions for homosexuals.
Anything less would be a dereliction of their duty as spiritual leaders.
Still, Dorff acknowledges that just as traditionalists may object to the
fundamental basis of his argument, homosexuals may still find his decision too
restrictive. Nevertheless, Dorff's ultimate compromise is that sexual expression is a
matter of human dignity and second that the religious ethic of human dignity is a
sufficient basis to override certain – but not all – prohibitions. Although Jewish law
imposes several restrictions on sexual behavior, the case of homosexuals is different due
to their lack of choice in sexual orientation:
What distinguishes the situation of gay and lesbian Jews from others who
experience forbidden sexual desires is that heretofore, gay and lesbian
Jews have had absolutely no permitted avenue for sexual expression or for
the creation of a committed romantic relationship. It is this situation of
absolute and permanent isolation that undermines their human dignity
(Dorff 2006:3).
Ultimately, the Dorff teshuva concludes with four halakhic conclusions. The first
is that anal sex between men is prohibited and as such, "gay men are to refrain from anal
sex." Secondly, if someone is "incapable" of the halakhic ideal heterosexual marriage, he
or she may engage in any homosexual sexual activity, apart from anal sex between men.
Thirdly, gays and lesbians would be permitted to attend the rabbinical and cantorial
schools on halakhic grounds, though the actual policy decision would be determined by
the schools' administrators. Finally, without endorsing or creating an institution of gay
marriage within Judaism, same-sex couples should follow the same principles of stability
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(i.e. monogamy) attributed to heterosexual couples (Dorff 2006:19). We will now
explore in detail the arguments of Dorff teshuva, and contrast, where applicable, to the
halakhic arguments and rebuttals of Roth.
3.1. The Prohibition of Homosexual Sex
Most discussions of homosexuality begin with the dual Biblical prohibitions of
Leviticus 18:22, "a man shall not lay with another man as the lyings of a woman – it is
and abomination" and Lev. 20:13, "If a man lies with another man in the lyings of a
woman he has done an abomination. Both of them shall be put to death and their guilt is
on them." These verses prohibit a specific sex act between two specific partners i.e., two
men, and apply the death penalty for its transgression. Rabbinic sources define the
specific form of capital punishment as stoning (M. Sanhedrin 7:4), the same punishment
not only for certain sexual transgressions such as incest or bestiality, but also for ritual
transgressions such as idolatry (ibid) or desecrating the Shabbat (B. Shabbat 154a). For
the Talmudic sages, stoning is the most severe of the four methods of capital punishment
(M. Sanhedrin 7:1), thus indicating the gravity of the transgression.
Despite the explicit prohibition, there have been attempts to reinterpret the
biblical passage to permit anal sex between willing partners. One such suggestion made
by R. Steven Greenberg, an Orthodox ordained openly gay rabbi, interprets the key verb
"lyings of a woman" to refer not to the physical action of anal sex, but to the context and
meaning for the participants. For Greenberg, the injunction against "lyings of a woman"
refers to demeaning sexual relations in which one of the male partners is feminized.
Thus the Bible prohibits one partner from feminizing the other, and also prohibits a
passive partner from allowing himself to be feminized. However, were the relationship
empowering or otherwise healthy, the biblical prohibition would not apply (Greenberg
2004).
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Dorff acknowledges this and other similar rationalizations, but ultimately rejects
them on the grounds that:
Judaism is based on how the Rabbis interpreted the Bible, and so the
crucial point is how the Rabbis read these verses to refer to anal sex.
Their only debate regarded whether [Lev] 18:22 penalizes the receptive as
well as the insertive partner (ibid 2).
Here Dorff rejects a theoretical interpretation on the grounds of rabbinic authority, or
more accurately, Talmudic rabbinic authority. Since the Talmudic rabbis, without
exception, understood these verses to refer to anal sex, it must be prohibited by biblical
law.
On this point, there is no difference between Dorff, Roth, or for that matter the
undisputed halakhic position since Talmudic times. Here Dorff's reasoning is an appeal
to the specific body of Talmudic sages as the ultimate decisors of biblical interpretation.
But as we will see in the next section, Dorff also maintains a degree of flexibility in
interpreting those same Talmudic sages.
3.2. Other Homosexual Activity
The second conclusion of the Doff teshuva allows homosexuals to engage in any
other sexual activity aside from anal sex between men – i.e. acts which are not explicitly
Biblically prohibited – including oral sex and masturbation. Dorff's approach in
permitting other homosexual activity is twofold. First, Dorff argues that all other
possible violations are not biblical (deoraita) but rabbinic (derabbanan). This
designation provides greater halakhic flexibility. Rabbinic laws may be suspended
under certain conditions (B. Ketuvot 60a) and in fact traditional authorities,
predominantly in medieval Ashkenaz, have even ruled that if the reason for a rabbinic
enactment is irrelevant, the law no longer applies (Soloveitchik 1987; Katz 1992).
Once Dorff establishes other homosexual activity as being prohibited
rabbinically, his second task is to justify why these rabbinic laws may be excused for
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homosexuals, and to clearly provide an analogous precedent in the traditional sources.
Roth on the other hand challenges Dorff on both assumptions – first, that the laws are in
fact rabbinic, and secondly, even if they were rabbinic that the reason Dorff provides a
halakhically adequate dispensation.
3.2.1. The Nature of the Prohibition
Jewish law prohibits sexual actions aside from actual intercourse. This
prohibition is based on the Lev. 18:6 and Lev. 18:19 which forbid "coming close" to
having intercourse with either family members or a woman who is impure from
menstruation. This "coming close" is defined as any form of inappropriate touching
including kissing (B. Avoda Zara 17a). The Sifra, an early collection of Jewish legal
exegesis with the same force of law (Strack and Stemberger 1992), extends the
prohibition to all forbidden relationships and not just menstruating women or family
members (Acharei Mot 13:2). Based on this Sifra, Maimonides codifies all forms of
improper sexual contact to violate a biblical prohibition (Hilkhot Issurei Biah 21:1).
Dorff counters that Maimonides follows one plausible rabbinic source, but there
are other rabbinic interpretations as well. Specifically, Dorff cites alternative opinions
from both the Jerusalem (Y. Sanhedrin 7:7) and Babylonian Talmuds (B. Shabbat 13a)
which limit the extent of "do not approach" to refer exclusively to intercourse. In fact,
Dorff notes that the Sifra does not appear in the later rabbinic sources, implying that the
earlier interpretation was rejected or overruled and therefore not truly part of the
rabbinic tradition. Supporting his position is Nachmanides (Ramban), who disputes
Maimonides' inclusion of "do not approach" as a biblical prohibition (Gloss to
Maimonides' Sefer Ha-Mitzvot 353), an opinion which Dorff interprets as an admission
of its rabbinic source (Dorff 2006:5-6).
Practically speaking, authoritative codifiers of Jewish law include under the
heading of "do not approach" several additional prohibitions such as casual touching or
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serving food (Hilkhot Issurei Biah 11:18). While such opinions are generally accepted by
Orthodox Jews (Forst 1999), Dorff reminds the reader that Conservative Judaism has
already rejected such restrictions for its constituency:
However, our community does not enforce, and indeed does not accept,
these severe prohibitions. We do not hold, as a matter of fact, that the
laws of "approach" are biblically mandated, but rather that they are in the
category of rabbinic fences and borders that are all ultimately intended to
protect against transgression of the fundamental biblical rules about
sexual conduct. Just as the Sages of old exempted themselves from some
of the severity of the laws against contact between the sexes between
relatives, so have we concluded that average people can be trusted to
maintain appropriate relations despite social kissing and hugging and
moments alone together, even behind locked doors (Dorff 2006:7).
[Emphasis added]
One example of the rabbinic exceptions is that of the second generation Amora Ulla who,
depending on the reading, would kiss his sister on her chest (B. Shabbat 12a). Based on
Ulla's behavior in the Talmud, Dorff concludes that halakha assumes "average people"
can restrain themselves from biblically prohibited sexual activity. Consequently, rabbis
would have prohibited certain actions only is when there is a danger of a biblical
prohibition being violated.
Ramban discusses the logic of legal fences. We prohibit a man from
sleeping in one bed, even clothed, with his neighbor‘s wife out of obvious
concern for the urgings of desire in such a situation; but we permit
sleeping together clothed to a married couple when she is a menstruant,
or to relatives, for there is less reason to fear transgression. Even they,
however, may not sleep together naked nor engage in sexual play. This is
not a matter of biblical decree then, but a matter of common sense—
where there is danger of the core prohibition being flouted, there is need
for a legal fence. That is the reason that that very same fence might be
waived for those who are not under suspicion of transgression in this
regard. Normative Jewish law and custom recognize no bar to males
establishing a homestead. But sexual play remains rabbinically prohibited
(Dorff 2006:7).
Dorff continues his earlier argument by claiming that there is no law – biblical or
rabbinic – prohibiting of homosexuals from living together, or "establishing a
homestead." The underlying logic of this argument is that since halakha trusts married
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couples not to violate sexual impropriety, such trust may be extended to homosexuals as
well.
Though unstated by Dorff, the Talmudic basis for his argument may be found in
the laws seclusion, or yihud. According to rabbinic law, a person is not allowed to be
secluded with someone for whom sexual relations are prohibited ('arayot) lest someone
be tempted to engage in sexual behavior. However, when there is no such concern,
exceptions can be made. For example, if a married woman's husband is in town,
halakha considers the fear of being caught to be a sufficient deterrent to permit her
seclusion with another man (B. Kiddushin 81a).
But there are also 'arayot for which the rabbinic sages did not prohibit seclusion
at all due to the infrequency and improbability of sexual interaction. Included in this
category are incest (father and daughter, son and mother, and siblings) (M. Kiddushin
4:12), as well as bestiality and homosexuality (B. Kiddushin 82a) – all instances for
which the rabbinic sages "do not suspect" Jews to engage in inappropriate sexual
behavior.
Dorff contends that Jewish law trusts individuals to behave themselves, even
permitting contact, such as in the instance of Ulla. However according to Talmudic law,
such practices are only applicable where there is no assumption of sexual context, and
this point alone may explain the actions of Ulla. Another rabbinic narrative provides a
similar example of permitting otherwise illicit contact. R. Acha would dance with the
bride on his shoulders. When his students asked if they do the same he replied, "if they
[the women] are like a beam for you [i.e. there is no sexual connotation] then yes,
otherwise no" (B. Ketuvot 17a). In other words, the dispensation Dorff infers from Ulla
could simply be attributed to the Talmudic assumption that physical contact between
family members is not sexual.
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However, when there is suspicion of sexual activity, the Talmud does in fact
impose such severe restrictions. For example, whereas married couples are trusted to
keep the laws of family purity such that the laws of seclusion do not apply, newlywed
couples who have not yet consummated their marriage are prohibited from seclusion if
the wife is menstrually impure. The reason given is that since the husband's "heart
desires her" physically, an additional halakhic precaution is necessary (B. Ketuvot 4a).
Similarly, the Talmud forbids entrusting animals to people who are suspected of
bestiality (T. Avoda Zara 3:2, B. Avoda Zara 15b, 22b). This law is unusual in that it is a
restriction on a third party not to facilitate probable prohibited sexual activity. Thus
Maimonides (Hilchot Issurei Biah 22:6) considers that this enactment to be not just a
rabbinic decree, but an application of the biblical prohibition of placing a stumbling
block before the blind (Lev. 19:14, Sifra Kedoshim 2:2).
Dorff does not distinguish between instances where there is a sexual relationship
and where there is not, nor does he consider the potentialities for sexual impropriety as
relevant factors. Dorff's primary concern is defining any possible violation to be
rabbinic, thus allowing for his eventual dispensation.
Another relevant prohibition is against non-sexual ejaculation or "wasted seed"
which Dorff addresses in a lengthy footnote. The Talmud strongly opposes this practice
to and even claims Judah's sons died because of it (B. Niddah 13a-b). However, Dorff
finds such statements to be homiletic rather than legal, and that the halakhic designation
of this prohibition is ambiguous at best. Dr. Abraham Steinberg, in his Encyclopedia of
Jewish Medical Laws, finds no fewer than nine traditional interpretations attributing
non-sexual ejaculation to be a biblical prohibition (2:407-9), a fact to which Doff
responds, "when the authorities across generations are unable to find a convincing
source it is likely that the prohibition is not in fact from the Torah" (Dorff 2006:28).
Furthermore, Dorff had previously written that "to date, none of the three movements
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has taken an official position validating masturbation, but in practice the tradition's
abhorrence of masturbation is largely ignored" (Dorff 1988:119). Dorff does not permit
masturbation outright, but for his current argument, he simply needs to demonstrate
that any prohibition is rabbinic.
Roth counters that all forms of sexual activity between homosexual men falls
under the biblical prohibition of "lyings of a woman," and not just anal sex. The
Talmud's idiom for non-vaginal sex is "biah shelo kedarkah" – or alternative forms of
sex. Typically this idiom is restricted to anal sex exclusively, but Roth suggests that by
definition all homosexual sex must be considered as "alternative" because "regular" sex
is physically impossible (Roth 2006:9). Regarding Talmudic sources which attribute
biah shelo kedarkah as referring to anal sex (B. Bekhorot 42b), Roth admits that he must
suggest "a radically different understanding…not offered, to the best of my knowledge by
anyone" (Roth 2006:12).
While Roth acknowledges the relative weakness in his interpretation, he also
notes that his readings are not the result of a natural reading of the texts, but rather an
exercise in halakhic strategy:
It is far more important to Rabbis Dorff/Reisner/Nevins/Fine that I be
mistaken, than it is to me that I be correct. For their entire argument to
stand, it must be absolutely clear that oral sex cannot be in the category of
the biblically forbidden. I, on the other hand, have argued all of the above
as what seems to me a logical possibility, with far reaching implications,
but upon which my argument does not actually depend. BECAUSE, all of
the above notwithstanding, I seriously entertain the possibility that I am,
in fact, mistaken, and that the only behavior which incurs the full liability
of the Bible‘s verses about homosexuality is anal intercourse.
Methodologically, one had better be very certain before relying on one‘s
own interpretation of the law that seems to be at variance with the
interpretation of so many others. After all, maybe the others are really
correct! (Roth 2006:13)
Roth's rejoinder is not essential to his overall position to forbid homosexual behavior,
nor does it seem that he is all that convinced by his own reading. Roth can successfully
rebut Dorff's argument by challenging its premise. By suggesting that other homosexual
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activity is not rabbinic but biblical, Roth argues that Dorff's subsequent dispensation is
based on dubious halakhic grounds. What Roth seeks to accomplish is to cast a halakhic
doubt or "safek" on Dorff's halakhic classification of homosexual behavior.
After casting this doubt, Roth then applies a traditional halakhic principle
regarding such doubts, yet extends its application beyond its original intent. Talmudic
law mandates a simple practical rule when confronted with doubts: if the law in question
is rabbinic then one may (or must) be lenient (sefeika derabbanan lekula) (B. Shabbat
34a); if the law in question is biblical then one must be strict (sefeika deoraita lehumra)
(B. Beitza 3b). Roth contends that since he has introduced a doubt as to whether all
homosexual activity is rabbinic or biblical, then the stringency should apply:
At a very minimum, R. Nevins ought to consider that his thesis is at least a
safek, and apply the principle of safek deoraita lehumra (Roth 2006:22).
This is not an authentic Talmudic reading in that the Talmud's principles of safek only
apply to when the circumstance or application of the law is in doubt, not on the nature
of the prohibition itself.
The area in which both Roth and Dorff agree is that lesbianism is a rabbinic
prohibition (Roth 1992, Dorff 2006:7) based on B. Yevamot 76a, B. Shabbat 65a-b.
While the nuances of these prohibitions are subject to much rabbinic and academic
debate (Brooten 1996; Riccetti 2005), the rabbinic nature of the prohibition – the
essence of this part of Dorff's argument – is not questioned.
3.2.2. Dignity as a Dispensation
We have mentioned briefly that the impetus for the Dorff teshuva is the human
dignity of homosexuals.
…the established halakhah presents a complete ban on all acts of
homosexual intimacy. However, our predecessors assumed that this ban
would lead those with homosexual inclinations back into heterosexual
marriages; nowhere do the Sages suggest that celibacy is a desired Jewish
outcome. Given what we have learned about sexual orientation in recent
decades, this assumption is no longer valid. To uphold the halakhah‘s
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comprehensive ban is to consign a significant class of Jewish women and
men to life-long celibacy or communal condemnation. This result is
problematic not only for the affected individuals, but also from the
vantage of the halakhah‘s own mandate to safeguard human dignity
(Dorff 2006:8).
The two arguments of this paragraph are that the concern for human dignity can
supersede rabbinic law, and that requiring homosexuals to live a life of celibacy is an
affront to their human dignity. We shall discuss each of these in turn.
The Talmudic term for human dignity is kavod haberiot, literally meaning
honoring the creations. By referring to people as "creations," the rabbinic sages refer to
the creation narrative in which man is created "in the image of God" (Gen. 1:27, M. Avot
3:14), including one would expect, homosexuals as well.
Dorff cites a Talmudic passage in which the sages themselves allow for their own
laws to be suspended when human dignity is at stake:
Come and learn: So great is human dignity that it supersedes a negative
commandment of the Torah. And why? Don‘t we say, ―there is no wisdom,
nor comprehension nor counsel against the Lord‖? (Proverbs 21:30) Rav
bar Sheba interpreted it thus before Rav Kahana: ―[this principle applies
only] to the negative commandment of ‗do not stray‘‖ (Deut. 17:11). They
[i.e., his colleagues] laughed at him, saying, ―‗Do not stray‘ is itself from
the Torah!‖ But Rav Kahana said to them, ―When a great man states a
matter, do not laugh at it. For all of the words of the Sages are supported
by the negative commandment of ‗do not stray,‘ but for his dignity, the
Rabbis permitted him [to ignore their ruling]" (B. Berakhot 19b).
This passage establishes that the Sages waived their own dignity (i.e., the
power of their precedents), but not the dignity of the Torah, in deference
to the dignity of other people. While the Sages traced their own authority
to the verse from Deut. 17:11, they still distinguished between the stature
of their rulings and those of the Torah itself (Dorff 2006:11).
How did the sages waive their own dignity? Dorff provides three Talmudic instances:
For example, in Shabbat 81a-b, permission is granted to carry smooth
stones up to a roof on Shabbat to be used for hygienic purposes. Here a
form of carrying prohibited by the rabbis, but not the Torah, is permitted
in deference to human dignity. A similar case is brought at Eiruvin 41b.
Likewise in Shabbat 94b, Rav Nachman allowed the removal of a dead
body from a house to a karmalit on Shabbat, out of deference to human
dignity. Another application of our principle comes from Megilah 3b.
Which mitzvah takes precedence, reading Megilat Esther at its prescribed
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time, or attending to the burial of an abandoned body? The abandoned
body has priority, for "so great is human dignity that it supersedes a
negative commandment of the Torah" (Dorff 2006:11).
The first two instances discuss carrying on Shabbat from a private domain to a
"karmalit" – a non-public and non-private domain into which carrying is rabbinically
forbidden (M. Eruvin 9:2), and as such may be violated for personal hygienic reasons,
such as using a restroom, or being forced to remain in the same house as a dead body.
Since only rabbinic laws are violated, then the rabbinic sages were able to suspend their
own laws against carrying. The third instance allows a person to miss reading the
Megilah on Purim – another rabbinic decree (M. Megillah 1:1) – in order to perform
another commandment of burying a dead body. The "negative commandment of the
Torah" referred to is Deut. 17:11 or "do not stray from that which they tell you either to
the right or to the left," a commandment to follow rabbinic authority.
To further support the claim that kavod haberiot is a determinative principle in
halakha, Dorff includes statements from Orthodox rabbis and academics. For example,
Prof. Daniel Sperber of Bar Ilan University enumerated instances of traditional
authorities who gave kavod haberiot halakhic precedence over rabbinic laws and even
communal dignity (Sperber 2002). Furthermore, Dorff cites R. Aharon Lichtenstein
(Lichtenstein 1993) and Prof. Tamar Ross (Ross 2004), both leading Orthodox scholars,
as both identifying kavod haberiot in the halakhic system. The appeal to traditional
scholars lends legitimacy to Dorff's argument that kavod haberiot is an intrinsic
mitigating factor within Judaism, though one would assume that neither Prof. Ross nor
R. Aharon Lichtenstein would agree with Dorff's conclusions.
Similarly, Dorff cites R. Louis Ginzberg – once the leading halakhic authority of
Conservative Judaism – to support the theoretical and moral basis of his argument, but
ignores Ginzberg's halakhic application. According to Dorff:
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Rabbi Ginzberg states that the law is more sensitive to the humiliation of
the individual than to the disrespect to the public. This commentary
supports our understanding that kvod habriot describes the dignity of an
individual within his or her social context (Dorff 2006:16).
However Ginzberg himself considered oral sex – homosexual or heterosexual – to be
halakhically prohibited based on the homiletic passages dismissed by Dorff:
There is no reference neither in the early nor in the later Rabbinic
literature to fellatio, though there can be no doubt that according to [the]
Jewish view, it is strictly prohibited, since it culminates in ejaculation and
any manipulation leading to ejaculation is considered by the Rabbis as a
very grave moral and religious sin (Ginzberg 1996:216).
While Dorff cites his authorities selectively, he does not necessarily create a logical
inconsistency. Dorff could argue that the ethical mandates dictate the legal application
based on the unique circumstances at hand.
Regarding his second point – defining the halakhic parameters of kavod haberiot
– Dorff acknowledges an intrinsic subjectivity but he assumes that preserving sexual
activity would be included:
…the rabbinic restrictions upon gay men and lesbian women that result in
a total ban on all sexual expression throughout life are in direct conflict
with the ability of these Jews to live in dignity as members of the people of
Israel. For this reason, the halakhic principle of gadol k‘vod habriot must
be invoked by the CJLS to relieve their intolerable humiliation. We must
make open and rigorous efforts to include gay and lesbian Jews in our
communities, to provide a proper welcome and a legal framework for the
normalization of their status in our congregations (Dorff 2006:17).
Despite the numerous citations purporting the importance of kavod haberiot, Dorff
provides no evidence that sexual restrictions undermine human dignity. In fact,
prohibiting private sexual activities in no way precludes public participation in religious
life, which presumably is where humiliation would occur. Oddly, Dorff cites this as proof
to the contrary:
Dignity is a social phenomenon. In all of these cases, there is interplay
between the dignity of the actor and the dignity of his neighbors. For a
person to smell filthy in isolation may be uncomfortable, but it becomes
humiliating only when others smell him. His humiliation humiliates them
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and vice versa…It is therefore not accurate to discuss the dignity of X as if
it were separate from the dignity of Y (Dorff 2006:16).
Here Dorff acknowledges that humiliation requires the knowledge of other people, yet
does not explain how private prohibitions would lead to public humiliation.
In this passage Dorff's main point is to demonstrate that each person's dignity is
intrinsic and valuable in its own right. This is in direct response to Roth's critique of
Dorff. Dorff's argument is that since the Talmud allows for the suspension of rabbinic
laws in the interests of human dignity. Roth contends that all Talmudic instances of
human dignity superseding rabbinic law involve the dignity of someone else i.e. not the
primary actor:
Most importantly, however, the entire category of kevod ha-beriyyot may
well be inapplicable to this issue. The principle means: "X may violate the
law out of deference to the honor/dignity of Y." It does not mean that ―X
may violate the law out of deference to his own honor/dignity" (Roth
2006:22)
Roth offers three explanations from different criteria. First the idiom the Talmud uses is
"great is the dignity of the creations [man]" (gadol kavod haberiot). But, were this
idiom referring to self-reflexive dignity then it should have been phrased "great is man's
own personal dignity" as opposed to mankind's dignity in general. Secondly, Roth finds
the notion that to suspend laws because of one's own dignity is "counter-intuitive."
Religion, after all, requires obedience to established principles of laws and "one must
forego one's own honor to comply with God's command, and honor him" (Roth
2006:24), otherwise one could simply disregard the entire law simply because of an
affront to one's own personal dignity.
Finally, Roth argues that the motivations behind the Talmudic dispensations are
for the honor of others. For example, the person who carries stones to use in a restroom
does so out of respect for other people around him by not subjecting them to "the odor
which would likely be emanating from him" (Roth 2006:24). Roth addresses several
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other examples provided by Dorff, though he misses the other two which are most
essential to Dorff's argument and cited earlier in this paper. Of those two instances,
missing Megillah reading to bury someone could easily fit within Roth's parameters of
missing a personal obligation for the sake of another. However, the instance where
someone is allowed to move a dead body out of a house on Shabbat seems clearly to be in
the best interests of the people in the house. Since there is no indication that there are
multiple people in the house, the law would be that a person could move a body from his
house even if he is the sole beneficiary of this action i.e. it is for his honor alone. This
case would therefore disprove Roth's interpretation, though Roth himself neglects to
address it.
3.2.3. Historical Precedent and Significance of Dorff's Argument
From a historical standpoint it should be noted that Dorff's halakhic strategy has
been used previously by Conservative Judaism in its controversial 1950 decision to
permit driving to synagogue on Shabbat. R. Morris Adler, R. Jacob Agus, and R.
Theodore Friedman recognized that Shabbat observance in Conservative Judaism was in
decline. Given the important religious and historical role of Shabbat in Judaism and the
challenges faced at the time, these Rabbis decided that drastic action was in order.
As with Dorff, they began by recalling the authoritative power of the Sanhedrin
and the Jewish legal precedence for special dispensations.
The general impression that Jewish Law is rigidly inflexibly and incapable
of adjustment or adaptation is completely erroneous…There is a core of
laws called d'oraita, Torahitic, which can never be changed but which can
be temporarily suspended for good and valid reasons. There is also a
category of rabbinic ordinances, d'rabanan, which can be revoked
permanently only by a re-constituted Sanhedrin, or a court, "greater in
wisdom and numbers" than the ancient courts in Palestine. In crucial
periods our Sages did not hesitate to make special enactments for their
own time or for a limited period of time, in order to meet the challenge of
new circumstances (Adler, Agus et al. 1958:364).
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The main reason why driving on Shabbat is prohibited is that the action involves
igniting a fire – one of the only prohibited actions stated explicitly in the Bible (Ex. 35:3)
and as such would not be subject to change. However, the Rabbis argued, following the
medieval gloss of the Tosafists (B. Shabbat 94a), that in order for a biblical prohibition to
be violated, one must perform an action with the same intention as proscribed by Jewish
law:
The combustion of gasoline to produce power is a type of work that
obviously could not have been prohibited before its invention. All acts of
burning are prohibited only when performed for specifically described
purposes, such as: cooking, heating, lighting, or need of its ashes.
Burning for the sake of power was not included on this list (Adler, Agus et
al. 1958:369).
Based on this reasoning, these Rabbis concluded that any prohibition being violated by
driving a car on Shabbat is rabbinic and thus may be suspended in order to preserve
future generations' observance of Shabbat.
Dorff's teshuva allows for a similar dispensation on the same halakhic basis.
Roth objects strongly to the homosexual application, but given his longstanding
association with Conservative Judaism, he appears to be more accepting of the
dispensation for driving.
Roth's tolerance of the Shabbat teshuva may be attributed to the fact that its
intent was to "revitalize" the observance of Shabbat; its purpose was to preserve one of
the most fundamental and identifiable communal institutions of Judaism. Furthermore,
the Shabbat teshuva only permitted driving to synagogue exclusively i.e. the communal
meeting place. Jacob Agus, one of the coauthors of the Shabbat teshuva, later clarified
that his dispensation to drive on Shabbat did not even extend to fulfilling other Jewish
obligations such as visiting the sick or for a rabbi to attend a circumcision. However if
the rabbi was needed to perform the circumcision, the ritual by which a child enters into
the national covenant of Abraham, he would be able to ride (Agus 1997:456).
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The driving teshuva is clearly concerned with the Jewish identity on a communal
level, both in terms of its intent and its limited scope. However the question of
homosexuality is not a matter of communal Jewish identity, but rather concerns a
specific subgroup within Judaism. This is not to say that such groups are not entitled to
consideration, but not to the degree that explicit Jewish law must be adjusted that
drastically.
There is also an important formalistic difference between the driving teshuva and
Dorff's responsum on homosexuality in terms of the halakhic mechanism for
dispensation. Agus distinguishes between two such types of dispensations, a takkanah,
an enactment, and a hetair or "interpretation":
I refer to the Sabbath responsum as a takkanah, not a hetair. The latter is
an individual interpretation; the former is a communal enactment. The
acceptance of the responsum by the majority of the Law Committee may
be taken as positive action of the Rabbinical Assembly, since this is the
only form of endorsement possibly in our organization. Presumably, the
committee could be disavowed and dissolved by the convention if its
decisions did not correspond to the sentiments of our colleagues. In turn,
rabbis may be presumed to retain the confidence of their respective
congregations. A takkanah is validated by the express acceptance of the
people of any one community (Agus 1997:454). [Emphasis added]
For Agus even the creation and acceptance of the dispensation is itself a collective
exercise. It is a decision taken by a rabbinic body whose authority and decisions are only
validated by the approval of the Conservative Judaism community, whereas the hetair is
merely one individual's opinion. Agus continues:
Actually, the sole difference between a takkanah and an interpretation is
that the former is a communal enactment and the latter is a private
opinion. It is clear that a conscious policy of limitless commentary,
allowing free interpretation by individual rabbis, borders on anarchy. On
the other hand, a communal enactment is likely to restrain arbitrary and
extremist policies and to frame new enactments in the spirit of tradition
as a whole and of previous precedents. The line between free
interpretation and takkanah legislation should be drawn in keeping with
the distinction between general rules and individual applications… When
general rules are involved we cannot invoke the principle of freedom of
interpretation without destroying the fabric of norms and standards that
have been built up through centuries of travail (Agus 1997:454).
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According to Agus' distinction, the official enactment of the takkanah means that there
is public accountability as opposed to interpretations which have no such restrictions.
On the other hand, there is a qualitative difference between an enactment and an
interpretation. According to Dorff, enactments are "acts of rabbinic legislation that are
not based on textual and legal precedents, but are rather the pure assertion of rabbinic
authority to change the law" (Dorff 2006:32). In other words, the enacted dispensation
is not authentically part of Jewish law, but imposed by an external source. However, a
successful interpretation Jewish law places the dispensation as part of the intrinsic
halakhic system, thus bestowing a greater degree of authenticity to the dispensation. For
Dorff, his teshuva falls into this category:
…this paper affirms biblical law and depends on established halakhic
principles and precedents for its conclusions. We contend that the
halakhic status quo violates the Talmudic principle of gadol kvod habriot.
We therefore propose a solution that will allow our communities to fulfill
this halakhic obligation more fully. In other words, our responsum
precisely follows the format of rabbinic interpretation rather than
legislation (Dorff 2006:18).
Dorff claims that his use of interpretation allows a halakhic obligation of
maintaining dignity to be observed "more fully." This statement may seem incongruous
with a teshuva permitting homosexual activity, since after all, once homosexual activity
is permitted it cannot be permitted to a greater degree. However, if we assume that
Dorff's intention is to reconcile the conflicting individual identities of Jewish and
homosexual, he must choose the means of interpretation. An enactment may permit
certain activities, but the individual's identity conflict between religion and sexual
orientation will persist. Dorff's use of interpretation resolves the identity conflict for it
implies that the homosexual identity is acceptable, and has always been acceptable,
within the existing halakhic system.
3.3. Ordaining Homosexual Rabbis
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The third conclusion of the Dorff teshuva is the reversal of Roth's 1992 ruling
that homosexuals not be admitted to Conservative Judaism's rabbinical or cantorial
schools. Following the theme of the teshuva, Dorff finds that the acceptance of
homosexuals into the clergy is a matter of personal dignity:
Some have argued that even if gay and lesbian Jews are to be welcomed in
our communities, they still should not be ordained as clergy, who are
expected to represent our ideal of Torah observance. Although we agree
that the clergy should be role models of the mitzvot which apply to all
Jews, they are also entitled to the same consideration of their dignity as
are other Jews. As our Talmudic examples have demonstrated,
considerations of human dignity were extended to the rabbis of antiquity,
and we should not discriminate against the clergy of today (Dorff
2006:18).
Dorff is responding to Roth's 1992 rationale for prohibiting homosexuals from
entering the clergy: that openly gay rabbis would not be good Jewish role models for
Conservative Judaism:
The Rabbis may not have had a term for "role model," but the concept was
hardly foreign to them. Statements like "any scholar whose inside is not
like his outside, is no scholar" (B. Yoma 72b), " "any scholar upon whose
garment a grease stain is found is worthy of death" (B. Shabbat 114a), "the
body must follow the head (B. Eruvin 41a),"…attest to their understanding
of the concept. Leaders are role models whether they like it or not.
Religious leaders are, therefore, religious role models. A religious leader
in a Movement committed to halakha serves as a role model of what that
commitment means. It is important to note that the role modeling I refer
to, as it pertains to homosexuality has nothing to do with whether people
learn homosexuality from role models. Rather, I refer to the role
modeling of what is halakhically acceptable (Roth 1992:665).
Roth specifically considers the Rabbi in Conservative Judaism to be a role model of
halakhic practice more than anything else:
Clergy in the Conservative movement are perceived almost universally as
role models for halakhic acceptability. Therefore, persons who live an
openly homosexual lifestyle could not reasonably be accepted as rabbis or
cantors precisely because their lifestyle suggests that homosexuality is
halakhically acceptable (Roth 1992:666).
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In other words, since the laity would look to the rabbi's lifestyle choices as the
personification of religious observance, Rabbis must be held to exacting standards of
Jewish law.
Roth's description of rabbis as religious and halakhic role models is supported by
numerous Talmudic statements. The Talmud records several instances where law is
determined by Rabbinic actions, and at times students look to their rabbis specifically for
guidance. For two extreme examples, R. Akiva followed his teacher R. Yehoshua into the
bathroom and Kahana hid under Rav's bed to learn proper private etiquette (B. Berachot
62b). While both were criticized for their actions, their responses were, "it is Torah and I
need to learn" i.e. through observing the practices of their teachers.
From a technical matter of Jewish law, it is difficult to argue that homosexuals
are prohibited from becoming rabbis, especially since the modern system of ordination is
not the same as the classical ordination. Classical ordination initially was a private
function with a teacher passing it on to his student. This later evolved to a court of three
people, and at one point, the leader of the Jewish people (Y. Sanhedrin 1:2 19a). There
was no set curriculum, though there are several general requirements for Jewish
authorities. The Tosefta defines as its criteria that people be, "wise, humble, meek, fears
sin, faultless conduct in life, and esteemed by others" (T. Sanhedrin 7:1) and the
Jerusalem Talmud adds that a judge have a "good eye, lowly spirit, humble mind, good
heart, good inclination, and a good portion" (Y. Sanhedrin 1:4 17d). R. Yohanan believed
that judges needed to be, "good appearance, mature age, knowing sorcery and seventy
languages" (B. Sanhedrin 17a). There is no mention of specific sins or of having a
disqualifying identity to preclude someone from being a rabbi or Jewish authority.
However Roth is aware that the issue at hand is not the halakhic criteria for
receiving ordination. The chain of classical ordination ceased around 320-370 CE with
the dissolution of the Sandhedrin – the last body to approve new Rabbis in this tradition.
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But while there have been failed attempts at resurrecting classical ordination, no
ordination since that time bestowed upon the Rabbi the same halakhic authority as
dictated by the Talmud (Newman 1950:144-172).
Nevertheless, Roth views the rabbis of Conservative Judaism as not being judges
or decisors, but the human embodiment of Jewish practice – or at least that is their
function in Conservative Judaism. Presumably both Roth and Dorff – and perhaps the
entire movement – should expect Conservative Rabbis to follow Conservative law. For
his part, Dorff includes such a disclaimer in the second to last footnote of his teshuva:
We expect homosexual students to observe the rulings of this responsum
in the same way that we expect heterosexual students to observe the CJLS
rulings on niddah. We also expect that interview committees,
administrators, faculty and fellow students will respect the privacy and
dignity of gay and lesbian students in the same way that they respect the
privacy and dignity of heterosexual students (Dorff 2006:32).
While Dorff does expect compliance with the teshuva, he also expects consistent
treatment for heterosexual and homosexual couples. Both have halakhic requirements
for sexual behavior defined by Conservative Judaism; heterosexual couples must keep
the laws of family purity, and male homosexual couples must refrain from anal sex.
However, just as the policy for the heterosexuals' halakhic observance has been the
equivalent of "don't ask don't tell," the same principle of privacy ought to be applied to
the homosexuals.
Following his logic, Roth should be expected to have stringent requirements for
any public violation of Jewish law as being inconsistent with being a "role model" for
Conservative Jews. However, he does not impose the same requirement for observance
of keeping Shabbat or the dietary laws of Kashrut – both of which are fully observable
actions.
In fact, Roth explicitly excuses certain rabbis from violating a particular biblical
commandment. Biblical law forbids a kohein from coming into contact with a dead body
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not of his immediate family (Lev 21:1-3), and because of this prohibition, kohanim are
forbidden from entering cemeteries (B. Berachot 19b). This law would equally apply to
rabbis in that a rabbi-kohein is prohibited from entering a cemetery to officiate funerals.
While Roth does not condone the practice of Conservative rabbi-kohanim officiating
funerals, he is more accepting of the practice:
We function on the presumption that every graduate of the Rabbinical
School is committed to the observance of the halakhah. Individual rabbis
violate one or another of the halakhot. They do so for different reasons.
Often, though rarely verbalized as such, the "violation" stems from the
conviction that the halakhah being "violated" ought not to be the
law…Yet, I am unwilling to claim that such rabbis have no commitment to
halakhah (Roth 2005:173).
Roth tolerates the rabbi-kohein officiating funerals on the grounds that these rabbis may
in fact believe what they are doing is correct, and even if they violate Jewish law in one
area, they still accept the general halakhic system. This tolerance is in spite of a biblical
prohibition – one which is more definitive than Roth's own admittedly forced reading of
homosexual behavior. The difference between these prohibitions, however, could simply
be one of perception. The typical Conservative Jew will likely be more familiar with the
laws of homosexuality than they will with the priestly laws of impurity (or if they are
aware at the time that the Rabbi is in fact a kohein) and as such the rabbinic role model
remains intact. However, this is not a halakhic argument insofar as the violations are
identical, but rather a social one.
3.4. Performing Same-Sex Ceremonies
The final conclusion of the Dorff teshuva is in fact a non-committal statement on
homosexual marriage:
We are not prepared at this juncture to rule upon the halakhic status of
gay and lesbian relationships. To do so would require establishing an
entirely new institution in Jewish law that treats not only the ceremonies
and legal instruments appropriate for creating homosexual unions but
also the norms for the dissolution of such unions. This responsum does
not provide kiddushin for same-sex couples. Nonetheless, we consider
stable, committed, Jewish relationships to be as necessary and beneficial
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for homosexuals and their families as they are for heterosexuals.
Promiscuity is not acceptable for either homosexual or heterosexual
relationships. Such relationships should be conducted in consonance with
the values set out in the RA pastoral letter on intimate relationships, ―This
Is My Beloved, This Is My Friend‖: A Rabbinic Letter on Human
Intimacy. The celebration of such a union is appropriate (Dorff 2006:19).
Despite the media reports to the contrary, the Dorff teshuva explicitly does not endorse
same-sex marriages nor does it provide the individual rabbis the opportunity to make
their own decisions. Regardless of the secular legal definition of marriage, Jewish law
only recognizes kiddushin – the marriage between a man and a woman.
Dorff's conclusion that "the celebration of such a union is appropriate" is in
contrast to Conservative Judaism's strict position on intermarriage between Jew and
non-Jew, another form of marriage not recognized by Jewish law. In 1970, the CJLS
ruled that Conservative Rabbis are not allowed to officiate at intermarriages and in 1972
the CJLS extended that restriction to rabbis even attending an intermarriage. By 1989
the CJLS voted that synagogues were not to acknowledge an intermarriage, congratulate
the couple on their marriage or the birth of a non-Jewish child, or even to accept
donations on their behalf. Both Roth and Dorff voted in favor of this resolution (Epstein
2005).
The difference between intermarriage and homosexual marriage is in the
definition of "Jewish family." Neither would be recognized as typical, but for Dorff the
traditional definition of "Jewish" takes precedence over the traditional view of "family."
It is more important for Dorff that Conservative Jews maintain their national and
religious identity and observe Judaism to the best of their ability. This is more possible
with a committed homosexual relationship than with an intermarriage.
In terms of its consistency with Jewish law, Dorff does not reject homosexual
marriage on moral grounds as explicitly as the Rabbinic sources. The first mention is
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found in the legal interpretation of Lev. 18:3 – "do not follow their [Canaanite and
Egyptian] practices:"
What did they [the Canaanites and Egyptians] do? A man would marry a
man, a woman would marry a woman, a man would marry a woman and
her daughter, and a woman would marry more than one man. For this it
is written, "do not follow their practices" (Sifra Acharei Mot 9:8).
Dorff cites this Sifra in the context of establishing lesbianism as a rabbinic prohibition,
"there is reason to doubt that the prohibition against female lesbian activity derived by
Midrash Sifra from Leviticus 18:3 was regarded as biblical in the eyes of the Sages"
(Dorff 2006:7). However while Dorff does find a biblical prohibition against lesbian
activity, he ignores the ramifications for affirming homosexual marriages.
Dorff also argues that since this Sifra is not cited in the Talmud later authorities
may have overturned it (Dorff 2006:7). However the Talmud does in fact maintain the
prohibition against homosexual marriages:
Ulla said, "these are thirty commandments which the children of Noah
accepted upon themselves, but they only kept three of them: they did not
write marriage documents for two men (i.e. legitimize homosexual
marriage), they did not eat human flesh, and they honor the Torah" (B.
Hullin 92a-b).
By applying the prohibition of homosexual marriages to non-Jews, Ulla implies that
homosexual marriage a universal prohibition. Note that the Ulla in this passage is the
same Amora from B. Shabbat 12a who kissed his sister, and whose actions Dorff cites as
halakhically normative. Yet Dorff only references the opinion of Ulla where it supports
his central argument.
Neither passage is considered by Dorff in his conclusion on Jewish homosexual
marriage, though his argument could still be applied. If the prohibition against
homosexual marriage is rabbinic, then that law may be suspended in the interest of
homosexual's human dignity. Dorff's concern though is not in the prohibition but in the
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sense of marriage. Such a ceremony, even if performed, would have no halakhic validity
or significance.
As Dorff writes, in order to have a homosexual marriage under Jewish law,
Conservative Judaism would need to create its own institution and redefine kiddushin
which Dorff is unwilling to do. In fact, were Conservative Judaism open to a "new
institution" of Jewish marriage, it would open itself to criticism for its treatment of
heterosexual marriages as well, leading Orthodox rabbis to doubt any of their marriages.
4. Collective vs. Individuated Judaism
From the above textual analysis we may conclude that neither Roth nor Dorff is
entirely consistent with their own respective definitions of a halakhic as a legal or ethical
system. Both selectively cite sources as their arguments dictate while ignoring
contradictory data. Yet both are equally passionate as to the validity and importance of
their positions, and recognize its impact on their shared religious constituency. As noted
by Wertheimer earlier, neither teshuva offers any resolution for Conservative Judaism;
there is still tension within the Conservative community indicating division from within
the community on either side of the debate. Given that this is not the first significant or
controversial decision the CJLS has passed, we must consider why the question of
homosexuality evoked such strong reactions in Conservative Judaism.
Traditionalists of Conservative Judaism may point to the severity of an explicit
biblical prohibition which is considered an "abomination." But other biblical
prohibitions are routinely ignored with little fanfare. The Bible also states that eating
certain non-kosher foods is also an "abomination" (Deut. 14:3), yet according to the 1990
National Jewish Population Survey only 27% of Conservative synagogue members kept
kosher (Cohen 2000) and among non-members the percentage dropped to 14%
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(Goldstein and Goldstein 2000). Yet there is no corresponding religious outrage for the
neglect of this biblical prohibition.
From an ethical perspective another possibility could be Judaism's severe
admonitions against sexual immorality. The Talmudic sages were well aware of the
allure of sexual desires even suggesting that a captured pregnant woman is suspected of
having sexual relations since "there is no guardian against sexual immorality" (B.
Ketuvot 13b). Sexual immorality is given as the reason the Jews were exiled from Israel,
and to lose the divine presence from dwelling among them (B. Shabbat 33a). The sages
also recognized the human nature towards sexual desires (B. Haggigah 11b) to the point
where Rav is quoted as saying that the Jews only accepted idolatry not for intellectual or
theological reasons, but to avail themselves of sexual freedom allowed by other religions
(B. Sanhedrin 63b). On the other hand, traditionalists have been relatively silent
regarding the sexual leniencies noted above for heterosexual couples.
From the other side of the debate, we could attribute the championing of the
homosexual cause to reflect the liberal ideology prevalent among Jews. According to
Steven Cohen,
…integrationist anxieties, class interest, and prestige politics offer three
complimentary explanations of why Jews in general should have adopted
political views to the left of the American center, whatever that center
might have been. (Cohen 1983:137-138)
As the secular liberal world embraced homosexuality, Conservative Judaism found itself
lagging behind their secular counterparts. While this theory may provide some
explanation, it divorces the religious implications from the discussion and redefines the
debate over homosexuality in Judaism as one of religious Jewish ethics versus secular
ethics. Furthermore, this does not explain why homosexuality in particular would evoke
such controversy.
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As a final possibility, I suggest that the Roth and Dorff teshuvot are both
representative of a new struggle for the ideological future of Conservative Judaism. In
previous decades, the main question of Conservative Judaism has been how does the
movement balance tradition and modernity, typically expressed in the context of
modifying Jewish laws or practice (Gordis 1978). The classic debate of tradition and
modernity assumes a definition of Jewish identity based on the Jewish community as a
whole. However the definition of Jewish identity has gradually been shifting from the
community to the individual. From the respective approaches of Roth and Dorff towards
the question of homosexuality, we find that the underlying debate is to what extent
Conservative Judaism maintains its tradition assuming a collectivist Jewish identity and
to what extent it must adapt to the newer Jewish identity defined by the individuals.
Despite his positivist rhetoric, for Roth, Jewish identity is not even found in strict
Jewish practice, but rather those practices or rituals by which Conservative Judaism as a
collective recognizes as authentically Jewish. This would account for his leniency for the
kohein rabbi to officiate funerals and his stringency for homosexual rabbis. Despite both
actions being violations of biblical law, the rabbi who performs the former may still be a
good role model because his violation is not recognizable to the laity and so no conflict is
created. However, since Conservative Jews are more likely recognize homosexuality as a
sin, its public violation would contradict the collectivist sense of how a Jew is supposed
to act.
This model of collective identity represents the "traditional" ideology of
Conservative Judaism as defined by its most prominent figures. Solomon Schechter,
arguably the most formative figure of Conservative Judaism, coined the term "Catholic
Israel" to express the national and communal identity of Judaism:
Meaning is mainly a product of changing historical influences, it follows
that the centre of authority is actually removed from the Bible and placed
in some living body…this living body, however is not represented by any
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section of the nation, or any corporate priesthood, or Rabbihood, but by
the collective conscience of Catholic Israel as embodied in the Universal
Synagogue (Schechter 1970:11). [emphasis added]
In 1912 Henrietta Szold described the collectivist "Catholic Israel" to be the visceral and
essential component of Jewish identity:
The Jew permeated with these views knows Catholic Israel without a
definition. Himself part of it, he in turn creates Catholic Israel. Solidarity
is the bold, if need be, aggressive front that we turn to the enemy upon the
warpath; Catholic Israel is our fireside, at which we sit discussing,
arguing, taking counsel, confessing longings, nursing hopes and
aspiration, and, in intimate moments, not shrinking from the betrayal of
God-intoxicated feelings (Szold 1958:113).
Later in Conservative Judaism's history, Mordecai Kaplan advanced an extreme version
of this ideology in the process of forming the breakaway Reconstructionist movement.
However, his perspective on Jewish law follows the model of Schechter's Catholic Israel:
The religious observances, too, claimed the fervent loyalty of the Jew
primarily because they were a unique way of collective self-expression.
What often passes for orthodoxy is a mode of Jewish life that is not at all
motivated by a conviction of the supernatural origin of those observances.
If that mode of life were properly analyzed, it would be found that its chief
purpose was to be identified with the Jewish people, a purpose that is just
as ultimate as the will-to-live (Kaplan 1934:182-183).
This communal approach to Jewish identity was sufficient for European
immigrants whose national Jewish identity was often imposed upon them by their
government or society. However, American Jews had significantly more freedom to
make their own decisions and form their own identities. Where the collectivist identity
of being Jewish was once imposed upon the Jew, in America, one could choose to define
his or her own Judaism (Neusner 1990). As such, the prioritization of the collective
Jewish identity becomes the mark of "the archaic Jew" (Neusner 1972:62). For the
modern Jew, doubt or discomfort with one's own Jewish identity results in dissociation
from the collective:
Jews who are uneasy over their Jewishness will be reluctant to associate
themselves with anything Jewish. They will stand aloof from the Jewish
community or will strive sedulously to keep it as inactive as possible.
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They will resist the Jewish religion and the Jewish culture (Neusner
1972:79).
Marshall Sklare found among the second and third generations of Conservative Jews an
increasingly pessimistic attitude towards the future of their movement (Sklare 1972:253282), a phenomenon which he ascribes to the debunked sense of "triumphalism" of
Conservative Judaism's model over the Orthodox (Sklare 1990). Such pessimism could
also be explained by the individual's dissatisfaction with the collective, or simultaneously
the individual's focus on his own religious identity.
In their 2000 study on American Judaism Steven Cohen and Arnold Eisen found
that American Judaism is experiencing its own transformation towards individuation:
In broad strokes, that which is personally meaningful has gained at the
expense of that which is people-hood oriented. American Jews today are
relatively more individualist and less collectivist. Taken as a group, their
patterns of believe and practice are more idiosyncratic and diverse, less
uniform and consensual. No less important, they regard the everchanging selection of Jewish activities and meanings from the broad
repertoire available as part of their birthright as Jews. They celebrate the
autonomy of this choosing and do not worry about its authenticity.
Indeed, they welcome each change in the pattern of their Judaism as a
new stage in their lifelong personal journeys (Cohen and Eisen 2000:184).
This trend towards individuation is not exclusive to Judaism. Thomas Luckmann
described this phenomenon as "The Invisible Religion" in which the doctrines espoused
by an established church are supplanted by individuals in favor of their own subjective
sense of "ultimate meaning" (Luckmann 1967:69-73). Peter Berger attributes this
phenomenon to pluralism:
The pluralism situation multiplies the number of plausibility structures
competing with each other. Ipso facto, it relativizes their religious
contents. More specifically, the religious contents are "de-objectivated,"
that is, deprived of their status as taken-for-granted, objective reality in
consciousness. They become "subjectivized" in a double sense: Their
"reality" becomes a "private" affair of individuals…and their "reality",
insofar as it is maintained by the individual, is apprehended as being
rooted within the consciousness of the individual rather than in any
facilities of the external world – religion no longer refers to the cosmos or
to history but to individual Existenz or psychology (Berger 1990:151).
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As a result of this individuation, Berger claims that religions must either resist or
accommodate to the tastes of the individual. Karel Dobbelaere defines such
individuation a secularization, from the perspective of individual (individual
secularization) and a religion's response to individuation (Dobbelaere 2002). However
the question of homosexuality in Conservative Judaism differs from the general question
of secularization in that homosexuality itself is not a new ethic or value which provides
competition to the religious establishment, but a conflict of personal identities. Dorff
himself addressed his teshuva to those homosexual Jews who wanted reconciliation i.e.
their Jewish identity was as much a part of them as their homosexual identity.
Without the dispensation offered by Dorff, homosexuals are faced with two
mutually conflicting identities: the identity of sexual orientation and the identity of
religion which considers the first identity to be an "abomination." According to Dorff's
assumption that homosexuality is not chosen, its determinative factor for a person's
identity is no different than a person's halakhic identity as a Jew and as such
Conservative Judaism must respect the totality of a person's identity. When left to their
own devices, homosexual Jews must grapple with conflicting identities and some may
negotiate their own compromise (Schnoor 2006), but when homosexuals are forced to
choose between religion and sexual identity, religion will typically lose (Shneer and Aviv
2002:11). Dorff's solution provides more than just a dispensation for actions as found in
a takkanah, but his hetair effectively resolves the core conflict of identity.
Dorff recognizes that Conservative Judaism must not only adjust its laws to
contemporary challenges, but it must also account for general changes in attitude and
perspectives. For Dorff, American Conservative Judaism must evolve from simply being
an "ethnic church" (Sklare 1972:35) into a pluralistic multicultural society, welcoming
and accommodating to the plethora of individual identities. Dorff himself recently
emphasized the importance of the individual as the determinative factor of Jewish law:
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The Jewish covenant with God directly and profoundly affects our
relations with fellow Jews and non-Jews as well as our interactions with
God. The soul of the covenant is thus not only love and respect for God
but also love for our fellow human beings as we work together to fix the
world (Dorff 2007:122).
Yet Dorff cannot ignore the textual tradition altogether – it is far too essential for the
Jewish identity. However, he can use parts of that tradition to advance his vision for the
individualistic future of Conservative Judaism.
Finally, this approach to the halakhic debate on homosexuality also explains the
timing of the recent debate. The CJLS revisited the question of homosexuality shortly
after Arnold Eisen was selected to replace Ismar Shorsch as chancellor of Jewish
Theological Seminary. Given Eisen's earlier observations on the Jewish community in
America, it would not be surprising for him to request any changes he could make within
his own institution, and by extension, the entire movement of Conservative Judaism.
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